BOUNDARY LINE '"'*' 



BETWEEN THE STATES OF 




MARYLAND AND VIRGINIA, 

BEFORE THE 

Hon. Jeremiah S. Black, Hon. Wm. A. Graham, 
and Hon. Charles I. Jenkins, 

Arbitrators ttpon the Boundary Line between the States of Virs^inia aiiJ 

Alaryland. 



WIVI, J. ROBERTSON, R. T, DANIEL, 

Counsel for the State of Virginia. 



I 






BOUNDARY LINE 



BETWEEN THE STATES OF 



MARYLAND AND VIRGINIA, 



BEFORE THE 



Hon. Jeremiah S. Black, Hon. Wm. A. Graham, 
and Hon. Charles I. Jenkins, 

Arbitrators upon the Boundary Line between the States of Virgitiia and 

Alarytand. 



Wl^, J, ROBERTSON, R. T. DANIEL, 

Counsel for the State of Virginia. 




RICHMOND : 

Clemmitt & JoNKs, Steam Book and Joi: Printers, 
1875, 



F7s7 



BOUNDARY LINE 



liETWEEN THE STATES OF 



Virginia and Maryland. 



To t/ie Honorable Do<i: d of Arbitralors, in the matter of contro- 
versij relating to tf>c JiriJing line between the States of Mary- 
land and Virginia. 

The arbitrators are to ascertain and determine the true 
line of boundary between tlie States of Maryland and Vir- 
ginia: provided, that neitlier of the said States, nor the 
citizens thereof, shall by the decision of the arbitrators be 
deprived of any of the rights and privileges enumerated 
and set forth in the compact between them, entered into in 
the year 1785, but that the same shall remain to, and be 
enjoyed by, the siiid States and the citizens thereof forever. 

It will be necessary, therefore, after the circumstances 
which preceded this compact have been explained, to ascer- 
tain what is settled by it, and what remains for adjustment. 

BOUNDARY ON POTOMAC RIVER. 

Maryland claims to oust Virginia from the southern side 
of the Potomac, by making good her exclusive title to the 
river to low water mark on the southern shore down the 
whole course of the river (or so much of it as is left to 
Virginia by her recent dismemberment), to Smith's Point, 
which is its south point. The grounds of claim are two: 
1st. That by her charter (20th June, 1632,) she is enti- 
tled to a line: "passing from the said bay called JJela- 



ware hay, in a right line, by the degree aforesaid," 
(40th,) " unto the true meridian of the first fountain of tlie 
river of Paitomack; thence verging towards the south, 
unto the further bank of the said river, and following the 
same on the west and south unto a certain place called Cin- 
quack, situate near the mouth of the said river, where it 
disembogues into the aforesaid bay of Chesapeake." Eng- 
lish translation in Bacon's Laws of Maryland. 2nd. That 
therefore, Maryland has the right to have the line, as she now 
claims it, adjudged to her. 

And it is clear that unless this exclusive claim to the 
river be made good, Maryland cannot come to Smith's 
Point, and fails to establish it as the point from which her 
line runs across the bay to its eastern shore. 

Virginia on her part denies both of these propositions, 
and insists that she is entitled under her charter of the year 
1609, to the whole river Potomac to its low water murk on 
its northern shore, down to Point Lookout, which is the 
north point of the river, subject to the line of tiie new State 
of West Virginia; or, that she is entitled to enjoy the river 
to the middle of the stream, through its whole course be- 
tween the two States. 

To repel the claim of Maryland, and in support of her 
own, Virginia insists on the following propositions: 

1. The Maryland charter is in its terms vague, obscure, 
and open to several diflerent constructions, as will be shown. 
If the sense now assumed for it can be deduced from its 
language, it was not so understood by the king, the grantor; 
and proceeding, as it does, on false suggestion or misinfor- 
mation, that part of it is void. Blac. Com. B. 2,848; Penn 
V. Baltimore, 1 Ves. Sr. 452. For, 1st. Such construction 
contradicts the declared intent that the newly-created pro- 
vince "shall not henceforth be held or reputed a member 
or part of the land of Virginia, or of an}' other colony 
already transported, or hereafter to be transported," 
"from which we do separate both the said province and 



the inhabitants tliereof, and by these presents do will to 
be distinct." Sec. 21. 2n(l. It contradicts the purpose 
dechired in the n^rant, to people and civilize a region 
"hitherto uncultivated in the parts of America, and partly 
occupied by savages having no knowledge of the divine 
being;" a point urged with effect against this charter 
by Penn in his controversy with Lord Baltimore about 
the country now the State of Delaware, but originally em- 
braced, as the latter contended, in his grant. 3rd. It was 
plainly against the interest of the king's revenues — Misccll, 
J). 1, No. 44, No. 46; p. 10, No. 33. 4th. It would have 
been against those principles of reason, humanity and ne- 
cessity which make public law. The river is the great 
highway which Providence has established along the terri- 
tory on the southern bank, in its whole extent, for those 
who then held it, and the generations to follow; its use for 
navigation and access to the sea, for mill-sites, for manufac- 
tories, for irrigation, for the sustenance of men and cattle, 
and countless other necessary purposes, was indispensable 
for its enjoyment — ^Hd sine qua res uti 7ion potuit." 

2. Virginia was the elder colony. Her charter em- 
braced all the territory afterwards granted as Maryland, 
including Chesapeake Bay and all its tributaries, the Po- 
tomac included. 1 Hening's Statutes at Large, p. 88, § 6. 
The grant by the sovereign proprietor of the whole terri- 
tory, of the part on the northern shore of the river, retained 
the river itself as parcel of the reserved domain. The 
river thereby became, at low water mark, the boundary of 
the newly created State ; or, the operation of the grant was 
to entitle the colony and the province to hold the river 
'■'■ ad fibini medium aqua:.'" Hundley's Lessee v. Anthony, 
5 Wheat, R. 374. Wheaton's Elements, (Lawrence,) 252. 
3, Kent's Com., 547, (2d edit.) 

Under this interpretation Virginia retained the exclusive 
possession and jurisdiction of the southern shore, which she 
held before Maryland was created, and which she has 



t^Ctcf LOt^-'Tf' d-f 



6 

notoriously held and exercised ever since, with the assent, 
approval and acquiescence of the Crown, of the successive 
proprietary governments of Maryland, and of Maryland 
since she has been a State, notwithstanding her paper 
resolves to the contrary. 
^^.-.^-^iW^t^^^^VA ;poj. proof as to the King: MiscelL, p. 49-52/ As to the 
proprietary governments of Maryland, see the several laws 
erecting her counties on the northern shore, bounding them 
by the river. " From and after the 23d of April, 1676, the 
bounds of St. Mary's county shall begin at Point Lookout 
and extend itself up Powtowmack River to the lower side 
of Bird's Creek," &c., and so as to other river counties. 
By the establishment of ports of entry on the Maryland 
side, and the failure to establish them on the Virginia side. 
Bacon's Laws. On the Virginia side, Northumberland, 
opposite St. Mary's, is mentioned in the Virginia laws 
under the name of Chicawane, alias Northumberhmd, as 
having been settled, and as liable for taxes in arrear in 
1646, and as entitled to representation in the Assembl}^ in 
1648. 1 Hening, 337, 352. In 1653, Westmoreland was 
laid ofi" above, from a named river, " and so upwards to 
the falls of the great river of Potoraake." Id. 38L Staf- 
ford was laid oft' above Westmoreland, on the river, some 
years later. 2. Id. 239. These are the "three counties 
lying along the shore of that river," mentioned in the re- 
monstrance to the King, (1684,) against Lord Baltimore's 
alleged usurpations. Mis. p. 48. 

In 1661-2, Virginia passed a law against evasions of the 
tobacco duty by the people of Northumberland and West- 
moreland, by reason of ships coming into the Potomac, 
and anchoring in Lord Baltimore's dominions, "whence 
they send their sloops and boats to fetch the tobacco made 
in this country, without paying the said imposition." 2 
Hening, 132. 

No question is made that Virginia granted the lands on 
the southern shore of the river, as her settlements extended 



upwards from the south point of the river where they com- 
menced. In 1650, (March 18,) Sir William Berkeley, the Gov- 
ernor of Virginia, granted Smith's Point, (529 acres,) the south 
point of the river, (which Maryland now claims to have 
then belonged to her up to high water mark,) to Samuel 
Smith. Maryland statement, p. 59. There was no reserva- 
tion or allusion to any supposed rights of Maryland. At 
an early period it was declared to have been established as 
part of the land law, "that every man's right by virtue of 
his pattent extends into the rivers or creekes so farre as 
low water marke, and it is a priviledge granted him in and 
by his pattent." 2 Hening, 456. (1679.) And this right 
was enjoyed by the riparian owners on the southern shore, 
universally, and, as will be seen, is recognized as an exist- 
ing right in the compact of 1785. 

Virginia, during the colonial period and afterwards, ex- 
ercised the right of establishing ferries over the Potomac 
river from shore to shore. See MacDonald's Report, in 
" Reports Relative to the Boundary Line," pp. 39-43. It 
appears that before the date of the compact of 1785, as 
many as twenty eight ferries, soms below, some above tide, 
had been established, by the exclusive authority of Vir- 
ginia, from her shore over the river, and none by Maryland; 
and after the compact, the same exercise of jurisdiction 
was continued. 

In 1784, the Legislatures of the two States, by similar 
laws, conjointly incorporated the Potomac Company, to 
improve the river by "the extension of the navigation from 
tidewater to the highest place practicable in the North 
Branch." The Virginia law is in 11 Hening, 510. It has 
the recital "and whereas it may be necessary to cut canals 
and erect locks and other works on both sides of the river, 
and the Legislatures of Maryland and Virginia, impressed 
with the importance of the object, are desirous of encour- 
aging so useful an undertaking;" and the enactments of 
the law conform with this avowed purpose. This was an 



8 

independent act of legislation by Virginia, over the whole 
southern shore, above the tide, without reference to any 
supposed right or interest of Maryland in it, and had her 
solemn assent. 

In 1802, (1 R. C, 1819, ch. 14, p. 49,) Virginia ceded to 
the United States jurisdiction over so much of the lands 
lying on Smith's Point in Northumberland county, as might 
be necessary for the erection of a light-house and the ap- 
purtenant buildings thereto on the said Point, which cession 
was accepted by the United States, and a light-house was 
built, and has been maintained at the Point by a public 
appropriation. In 1828, (Session Acts p. 17,) she author- 
ized the United States to purchase from the proprietors of 
the land lying in or adjoining Smith's Point, so much land 
as might be necessary for the purpose of rebuilding the 
light-house, altering the site thereof, and for the erection of 
other necessary buildings. This was done, and paid for 
by public appropriation ; no objection having been inter- 
posed by Maryland on the ground of right of soil or juris- 
diction. And it was provided that should the light-house 
be discontinued, the jurisdiction thereby vested in the 
United States should revert to Virginia. 

3. Public History. "Under this head may be mentioned 
books and chronicles of public history, as partaking, in 
some degree, of the nature of public documents, and being 
entitled, on the same principles, to a great degree of public 
credit. Any approved and general history, therefore, is 
admissible to prove ancient facts of a public nature, and the 
general usages and customs of a country. But in regard to 
matters not of a public and general nature, such as the cus- 
tom of a particular town, a descent, the nature of a parti- 
cular abbey, the boundaries of a county, and the like, they 
are not admissible." Greenleaf on Evidence, S. 497; Mor- 
riss V. Lessee of Harmer's Heirs, 7 Peters 558-9 : J3everley's 
History of Virginia, Book 1, § 56-57 (p. 45), Book 2, § 2 
(p. 91) (1 edit. 1707); Histoire de la Virginie, A. Amsterdam 



9 

(1712)— ch. 4, § 3-5 (p. 72); The Trescnt State of Virginia, 
by Hugh Jones, cliaplain of the honorable Assembly, and 
lately minister of Jamestown in Virginia, (1724) p. 24 
(Sabin's Reprints); The History of the British Plantations 
in America, by Sir Wm. Keith, Bart., p. 142 (London, 
1738); An Account of the European Settlements in Ame- 
rica, ch. 18 (p. 2fi2); An Introduction to the History of the 
Revolt of ilie American Colonies, Chalmers 1, p. 61, 62 
(Sabin's Reprints) Marshall, American Colonies; Bancroft 
1, 243; Graham IV. 302. 

4. The grant by Charles the Second to Lord Hopton and 
others, made while an exile in the first year of his reign, as 
he counted it from his father's death, Jan. 30th, 1649. In May, 
1667, after his restoration, that grant having been surrender- 
ed, that it might be renewed with alterations, Charles granted 
the same territor}^ to the Earl of St. Albans and others : 
" all that entire tract, territory or parcel of land, situate 
lying and being in America, and bounded within the head 
of the rivers of Tappahanock, alias Rappahannock, and 
Quiriough or Patlawemeck rivers, the courses of the said 
rivers as they are commonly called or knowne by the inhab- 
itants, and description of those parts and Chesapeqocke 
bay, together with the rivers themselves, and all the islands 
within the bankes of those rivers, and the rivers them- 
selves." Afterwards, Thomas Lord Culpeper, having pur- 
chased the territory, "who was thereby become sole owner 
and proprietor thereof in fee simple," James the Second by 
patent confirmed the same to him in fee simple. But these 
patents, though they gave ample use and enjoyment of the 
territor}^ and power to make grants of the same, reserved 
to the Governor, Council, and Assembly of Virginia the 
exclusive authority in all the military concerns of the 
granted territory, and the power to impose taxes on the 
persons and property of its inhabitants for the public and 
common defence of the colony, as well as a general juris- 



10 

diction over them, their heirs and assigns, and all other in- 
habitants of the said territory. 

This great property came afterwards to Thomas Lord 
Fairfax, as heir of Lord Culpeper. In its upper parts, it 
long remained unexplored; but about 1736, disputes having 
arisen between ]jord Fairfax and the Colonial Government 
concerning the boundaries at the heads of the rivers, giving 
rise to conflicting grants, a fruitless attempt was made to 
settle the matter by a boundary commission. But in 1745, 
the king in council, on the petition of Lord Fairfax, and 
the report of the Lords Commissioners of trade and planta- 
tions, decided that the true boundary of Lord Fairfax's 
grant, according to the terms of his patent, began at the 
headspring of the south branch of the Rappahannock, which 
is declared to be that branch of the Rapidan called the 
Conway; thence northwest in a straight line to the head- 
spring of that branch of the Potomac called the Cohongo- 
roota; the other boundaries being the rivers themselves, as 
they run to the Chesapeake. An act of the Virginia 
Assembly was passed in 1748, reciting the adjustment of 
the boundary of the Northern Neck, confirming all previous 
grants and patents of the Crown within that territory, and 
transferring the quitrents and services to Lord Fairfax. 
Chancery Patent Roll 21, Car. IL (May 8, 1667); 1 Rev. 
Code 1819, ch. 87, 243, (passed in 1736, in which the patents 
are recited;) Id. 1 V. ch. 70, 349, (passed in 1748;) Id. Ap- 
pendix 2 V.344-5; Hunter v. Martin, 1 Wheat, 304, Misc. 
57. 

In 1748, Lord Fairfax opened a land office in the North- 
ern Neck, and continued to grant lands in this territory 
until his death in 1781 ; but at the revolution all quitrents 
and services for the lands were abolished, and the records ot 
his office were transferred to the land office at the seat ot 
government. 1 R. C. c. 91, 350. He died seised of 300,000 
acres ungranted, which he devised to an alien, whose capa- 



11 

city to take was tlie qiiePtion in Hunter v. Martin ; but the 
dispute was iinally coniiiosed according to the terms of an 
act of Assembly. 1 R. C. ch. 92, 352. Thus title to this 
territory became revested in Virginia, and united with 
jurisdiction over it, which had never been parted with. 

Lord Baltimore submitted to the Ilopton Grant, and his 
successors have submitted to what has been done in pur- 
suance of it, without murmur or remonstrance. Maryland 
Statement, p. 48. The conclusions to be drawn from these 
transactions are: 1. That the river did not pass, and was 
not meant to pass by the Maryland charter of 1632, but 
remained part of the reserved domain of the king. 2. That 
even if there be expressions in the charter to that effect, of 
which the king was advised, the grant, under the facts and 
circumstances of the cai=e, as to that part of it, is without 
effect. 

5. The Maryland Charter. The discrepancies and obscu- 
rities in the several editions, Latin and English, as to this 
part of the line, will be seen on inspection. Lord Balti- 
more gave his translation of it, in his "Relation," and has 
marked the line and its continuation he claimed from Cin- 
quack across the bay, on the accompanying map. It was 
this line which had to be abandoned when the Calvert and 
Scarburg line, hereafter mentioned, was established, and 
which, or something like it, Maryland seeks to restore. 

But how comes the line on the bank to Cinquack, thus 
mapped, to be substituted now by the line of the low-water 
mark to Smith's Point? In the Maryland Statement (48), 
it is said "that in the compact of 1785, Maryland yielded 
the line from Cinquack, and accepted Smith's Point (five 
or six miles further north), as the starting of the line across 
the bay." But the compact, as will be seen, settled no 
question of boundary or property, being on its face a pro- 
visional arrangement of navigation and jurisdiction. The 
language of the compact is: "The citizens of each State 
respectively shall have full property in the shores of the 



12 

Potomac river adjoining their lands." Instead of a recog- 
nition of property in Maryland, in the southern shore, she 
guarantees the property of Virginia in that shore, and 
accepts Virginia's guarantee of property in her own. 

Maryland must stand on her charter or abandon it. No 
mixed case can be made, of a call for the whole river under 
the stringent terms of her charter, and a change of claim of 
the southern bank down to Cinquack, for the low-water line 
to Smith's Point, when the difficulty of maintaining the 
charter line is felt. 

The line in exposition of the charter is dotted on this 
map so as to include, not the river proper as now 
claimed, but one of its tributaries (the present Acquia 
creek), which Smith named Patomeck, and which may 
have been mistaken for the main river itself, which had 
not then been explored. The country through which, by 
the charter, the line was to "verge" south from the 40th 
degree in search of the "further bank" of the river 
being unknown, the line as dotted, if continued, would 
have cut into the heart of the colony; so the protraction of 
the dotted, line from Cinquack across the bay to the sea, 
evinces a like ambitious design to attach to the Maryland 
province the wdiole river, including its mouth. Of a piece 
wdth this was the proclamation of Harvey, Governor of 
Virginia, in 1638, procured by Lord Baltimore, whose 
partisan he was, describing the province as extending 
"northward from the river Wiconow, commonly called by 
the name of Ouancock, on the eastern side of the Grand 
Bay of Chesapeake, and northward from the river Chin- 
quack, called Great Wicomico, on the western side of 
the said bay." Maryland Statement, 15; Instructions, 
id. 19. Miscell. pp. 31-37. See Bosnian's History of 
Maryland, 2 V. 73, note, from which it would appear that 
the line in this proclamation was under mistake supposed 
to coincide with the 38th degree, which was assumed to be 
the boundary of Maryland on the bay, as well as on the 



13 

Eastern Shore, anrl it is so marked on Lord Tialtimore's 
map. But it may be safely affirmed that not an incli of 
this dotted line was ever supported by occupation, or recog- 
nition by royal or colonial authority. 



THE COMPACT OF 1785. 

This compact, in connection witli the supposed con- 
cessions in the first Constitution of Virginia, is much 
relied on in support of the Maryland claim to the Potomac, 
and especially to Smith's Point, as a point in her boundarj'. 
it regulates, provisionally, and during joint pleasure of 
the States, navigation and jurisdiction, on the Potomac 
river and " the waters of the Cheaspeake bay, and the 
river Pocomoke in the limits of Virginia," and no more. 
This appears from the terms of the compact, and the lan- 
guage of the Maryland resolution appointing commission- 
ers to make it. Appendix Maryland Acts v. 7, Res. No. 1. 
Its restricted character resulted naturally, from what had 
gone before. The dismemberment of V^irginia by the 
erection of the colonies Maryland, Pennsylvania, and 
North and South Carolina, had been a ground of com- 
plaint by the elder colony. At the outset of the struggle 
for independence, Virginia, as a peace oifering, and to 
allay any possible apprehension of territorial claims on 
her part against those States, released to them all rights 
which might have been claimed by her to the terri- 
tories which she had lost, stipulating, however, in the 
case of Maryland, with whom there were open ques- 
tions on the subject, for the free navigation of the Poto- 
mac and Pokomoke rivers, and her property in the shores 
of those rivers. This oft'er might have been accepted bj' 
Maryland, had it stood alone. But it was connected with a 
reservation by Virginia of her western and northern extent, 



14 

as fixed by her charter, meaning her territory north west 
of the Ohio. To this reservation Maryland never would 
accede, but staid out of the confederation until the cession 
of that territory to the United States was made. So she 
rejected in resentful terms the overtures of Virginia. 
(Resolutions of her Convention in 1776. Documents, p. 9 
Hening,vol. 10, 553-564. Maryland Bill of Rights, Nov., 
1776.) 

But the cession having been made, and the war success- 
fully closed, this irritating subject could be approached in 
a more conciliatory spirit, and the compact which super- 
seded all questions of boundary, and aimed only to secure 
the free and common use and navigation of these waters, 
was its fruit. It recognizes what was conceded to exist, 
and waives or postpones what was questioned or disputed; 
which is the key to its interpretation. The whole river 
Potomac was in dispute. Maryland claimed under her 
charter the whole from its source to its mouth, including 
the soil and jurisdiction of its southern bank, and of the 
Virginia shore in Northumberland county to Wiconioco 
river; while Virginia claimed the river to its northern shore 
down to Point Lookout, or to the middle of the stream; 
and a line thence, across the bay, from one icrmimts or the 
other. Maryland claimed to protract the line she claimed 
on the Potomac over the bay to Watkins' Point. The 
southern boundary of Maryland on the bay was in doubt. 
A divisional line had been run by authority in 1668, from 
Watkins' Point to the ocean, over Pocomoke river, by which 
all the river above the line was given to Maryland, and all 
below it fell " within the limits of Virginia;" but the exact 
course of this line was in doubt; and it thus appears that as 
the upper part of the river belonged to Maryland, and the 
lower part communicating with the Chesapeake bay, (Po- 
comoke sound,) belonged to Virginia, it was important to 
secure to the upper inhabitants the navigation of the lower 
waters. All Chesapeake bay, from the capes to the south- 



15 

ern boundary of Maryland on the bay, (wherever that 
boundary niio;ht be,) belonged to Virginia. 

The compact adapts itself to this state of things; and a 
striking feature in it, is the way in which by its terms the 
Potomac, which was disputed property, is discriminated 
from "the waters of Chesapeake bay, and tlie river Poco- 
moke within the limits of Virginia," conceded to be within 
the limits of Virginia. The first is the subject of mutual 
stipulations for the benefit of both States, (and as to navi- 
gation, for the benefit of the United States, and all in amity 
with them.) As to the latter, Virginia stipulates separately 
for the benefit of Maryland, receiving in return privileges 
in other waters, the property of that State. 

By the fifth, sixth and seventh clauses, the two States 
agree that the river Potomac shall be "a common high- 
way for the purpose of navigation to the citizens of Vir- 
ginia and Maryland, and of the United States, and to 
all otlier persons in amity with the said States, trading to 
or from Virginia or Maryland." The entrance and clear- 
ance of vessels are provided for at some naval office on the 
river, "in one or both States according to the laws of the 
State in which the entry shall be made." Property in the 
shores of the river adjoining their lands, with certain de- 
fined privileges in the river, is secured to the citizens of 
each State, with the common right of fishery in the river 
under prescribed regulations. 

Put by the first and second clauses, Virginia separately, 
for the benefit of Maryland, disclaims the right (it would 
seem in accordance with the suggestion of the Maryland 
Convention, Doc. p. 9), to impose duties on vessels sailing 
through the capes to or from Maryland, and she agrees 
"that the waters of Chesapeake bay and the river Poco- 
moke, within the limits of Virginia, be forever considered 
as a common highway, free for the use and navigation of 
any vessel belonging to the State of Maryland, or any of its 
citizens, or carrying on commerce to or from said State, or 



16 

with any of its citizens." And for the benefit of the upper 
inhabitants on the river Pocomoke, as for other citizens of 
Maryland, she agrees that "the before-mentioned parts of 
Chesapeake bay and Pocomoke river be forever considered 
as a common highway, free for the navigation of vessels 
from one part of the State of Maryland to another." 
Maryland on her part agrees that vessels belonging to Vir- 
ginia or her citizens, or carrying on commerce to or from 
the State, or with any of its citizens, may freely enter the 
rivers of Marjdand as a harbor, or for safety against an 
enemy, without the payment of any port charge or other 
duty; and Virginia in the iirst clause reciprocates this 
privilege. But Virginia extends nothing to Maryland "in 
the waters of Chesapeake bay and Pocomoke river, within 
the limits of Virginia," beyond the right of navigation ; no 
right of property in its shores; no right of lishery; no ex- 
emption from port duties and other charges. 

By the tenth clause, jurisdiction is provided for over the 
Potomac and the part of Chesapeake bay and Pocomoke 
river within the limits of Virginia; and as, according to 
the scheme of the compact, which pretermits the matter of 
boundaries, it could not be assigned by territorial lines, re- 
sort was had to the plan of giving jurisdiction over offences 
committed in these waters, whether certain or doubtful as 
to ownership, to each or both states, according to the citi- 
zenship of the offender. 

An idea hiis been expressed, suggested it would seem 
by a strained verbal criticism, that the framers of the com- 
pact, when the}' speak in the tenth section of " that part of 
the bay where the line of division from the south point of 
Potomack river (now called Smith's Point), to "Watkins' 
Point may be doubtful," are not merely atfirmi ng that the 
part of the bay crossed by this supposed line may be doubt- 
ful as to ownership, but mean by this language to substitute 
Smith's Point for the Cinqimck named in tlie Maryland 
charter, and to fix Smith's Point irrevocably as a point in 



17 

the Marjland line. But that would have been a departure 
from the persistent purpose of the compact. They mean 
only to express the same doubt as to that part of the bay as 
to its ownership, as they express in regard to that part of 
Pocomoke river "where the line of division between the 
two States upon the said river is doubtful." They declare 
that part of the bay doubtful, and could not mean that the 
asserted line over it, cither as to terinini or direction, ap- 
peared to be and was certain. They make no allusion to 
Ciiiquach, and merely speak of the north point of the river 
by the name it had acquired — "now called Smith's Point." 
Conclusions: 1. That the property line on the Potomac, 
and from its mouth to the Eastern shore, remains unad- 
justed. 2. Part of the waters of Chesapeake bay, and part 
of the Pokomoke river, are exclusively within the limits 
of Virginia. 3. By the Calvert and Scarburg agreement, 
a divisional line between the States was run over Poko- 
moke river, but " the line of division between the two 
States on that river," was treated as doubtful. (It is made 
clear by Michler's Survey.) 



BOUNDAPvY LINE ON THE EASTERN SHORE 
AND CHESAPEAKE BAY. 

Virginia claims by the line from Chesapeake bay to the 
sea, as she insists it was established in 1668 by Calvert and 
Scarborough; and as it appears by the survey of Michler, 
made under the joint instructions of the commissioners of 
the two States, Lee and McDonald, in 1859. Michler's 
Report and Survey; Calvert & Scarborough Agreement 
(Maryland statement, p. 37). 

The binding authority of this agreement has never been 
disputed, unless the present claim of Marylaiul is to be so 
interpreted: a line "from the centre of Cedar straits, near 
3 



18 

the southern end of Watkin's point; thence by a right line 
to the Atlantic ocean." The act of Maryland, however, 
which invited this investigation (ch. 385, March 1860), 
while it insists on an interpretation of the agreement which 
Virginia contests, does not deny but distinctly asserts its 
authority. But the agreement was authorized and ratified 
by both colonies and approved by the king. 

1. The line as laid down by Michler and insisted on by 
Virginia, conforms with the language of the agreement. 
Watkin's Point being ascertained to be "the point of land 
made by the north side of Pocomoke bay and south side ot 
Annamessex bay," the commissioners say: "we have run 
an east line agreeable with the extremest part of the west- 
ernmost angle of the said Watkin's Point" " over Poco- 
moke river, near Pobert Holston's," and ^^over Swansecute 
creek into the marsh of the seaside." Omitting from the 
passage quoted the words descriptive of marking the line 
near Holston's house, and attending to the words descrip- 
tive of running the line (the two have no necessary con- 
nection), the sense is too plain to be obscured. They say, 
they have run a line — an east line — over Pocomoke river to 
the land near Robert Holston's, agreeable with, that is, 
which agrees, concurs with, the extremest part of the 
westernmost angle. There could be no reason for this 
particular reference to "the extremest part" but to make 
it the beginning point of the line which should divide the 
disputed terrritory. The line is declared to run through 
the whole, from the bay to the sea; and is to be " received 
as the bounds of Virginia and Mar3'land on the eastern 
shore of Chesapeake bay." It is the marking of the line 
which begins east of the river and is continued eastward. 

2. No other construction is consistent with the object of 
the commission, which was to divide between the colonies 
the whole eastern shore territory lying between the bay 
and the ocean. This territory, which had been the sole 
property of Virginia, was to be divided, according to the 



19 

Maryland charter, b}^ u " right line drawn from the promon- 
tory or headlead called AVatkin's Point," "beside the bay 
aforesaid on the west, as far as the great ocean on the 
east;" up to which line the colonies would thenceforth 
hold respectively. A line through the whole territory was 
therefore indispensable. To have run it only from Poco- 
moke river eastward, would have left the territory be- 
tween the river and the bay still in dispute, and have left 
Maryland without any closing and initial point on the bay. 

3. Had the line established by the agreement been an 
arbitrary one, yet as it was authorized and accepted by 
both colonies and approved bj the king, it would have 
been conclusively binding. But it was not so. The south- 
ern boundary of Maryland, on the eastern shore, though 
it is not so express- od in the charter was, and is, the thirty- 
eighth degree of north latitude. Letter from the King to 
Lord Baltimore, appended to Reports of 1872, p. 9o. So 
it is described by Lord Baltimore on the map published 
with his Relation; and is indeed a settled point in geogra- 
phy. The commissioners ran the line accordingly. Mich- 
ler's Report (see Reports, pp. 9, 13). 

4. This construction is supported by the terms of the 
Compact of 1785, which expressly recognizes part of the 
Pocomoke river as being "within the limits of Virginia" 
though "the line of division between the two States upon 
the said river is doubtful." Section 10. The line here re- 
ferred to is the Calvert and Scarborough line, run " over " 
Pocomoke river; for there was no other. 

5. The continuation of the line from "the extremest 
part of the westernmost angle of Watkin's I'oint" over 
Smith's Island to the mouth of the Potomac, either to 
Point Lookout, or by the 38th parallel, is put beyond ques- 
tion by the evidence, tliough its establishment by any for- 
mal act of public authority cannot be proved. It is shown 
by the evidence of tradition, popular usage, and public acts 
of both sides in tljis controversy, such as grants of land by 



20 

each on the island recognizing the line of division between 
them, the collection of taxes by both, a commission under 
the election law of Maryland, by which an election district 
was laid off of so much of the island as lies in that State, 
and judicial decisions of the courts of that State, in cases 
of violation of her oyster laws, which recognize the di- 
visional line on Tangier Strait between Watkin's Point 
and the island, to be as Virginia contends it is. 

6. The line which Maryland claims seems to be unde- 
fined and uncertain. In her act, ch. 60, (passed March 20th, 
1852,) it is aiRrmed that it "has, from lapse of time, be- 
come uncertain." In her act, ch. 385, (passed March I860,) 
it is affirmed "that the true divisional line across Chesa- 
peake bay [a the soidhernmost" (not the westernmost) "angle 
of the body of land defined by the aforesaid commissioners 
as Watkin's Point." And now her pretension is, a right line 
from Smith's Point " to the centre of Cedar Straits, between 
Pocomoke sound and Tangier sound, near the southern end 
of Watkin's Point, thence by a right line to the ocean." 
These lines are irreconcilable with each other. Both vio- 
late the agreement of 1668, in that neither of them pro- 
tracted east to the ocean, would touch at any point the part 
of the line east of Pocomoke river to the sea, which both 
sides agree was established by that agreement; nor would 
a right line run east from the centre of Cedar Straits touch 
Pocomoke river, but would intersect the open Pocomoke 
sound several miles below the mouth of the river. Either 
line so protracted would unsettle and displace that part of 
the line which has, by concession of botli sides, been known 
and respected as a fixed boundary between them for nearly 
two centuries. Moreover, it would divide between the 
States, "the waters of Chesapeake bay and the river Poco- 
moke within the limits of Virginia," admitted to be her 
rightful possession, until questioned in this controversy. 
These lines are unsupported by any evidence of occupation, 
or recoicuition or monuments. 



21 

Some criticism has been attempted upon the apparent 
failure of the commissioners in 1G68 to mark the line west 
of Pocoraoke river. It is inferred, in the face of their plain 
language, and the object of their appointment to the con- 
trary, that they did not run the line from " the extremest 
part of the westermost angle" at all, but only so much of 
it as they marked with marked trees. The inference is illo- 
gical. There may have been reasons for this omission, 
which now can only be conjectured. The territory was 
marshy, difficult of access, probably bare of woods, and 
thinly settled if at all. The " extremest part" of the cape 
or headland was a plain and visible object, being then more 
prominent than now — "a point running out from the high- 
land of James' Island" — and, " agreeable" with this, it 
f was easy to run the line over Pocomoke river." 






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